## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07 - 15 - 00204 - CR JERMAIN GAITHER, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2013 - 400,719, Honorable Jim Bob Darnell, Presiding



### Decembe r 7 , 2015 MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Jermain Gaither appeals his conviction for aggravated robbery . Through his s ole issue, he contends that the evidence was insufficient to prove, beyond reasonable doubt, that the objects he and his accomplice exhibited during their robb ery of a convenience store were firearm s or deadly weapon s . We overrule the issue. The applicabl e standard of review is described in Murray v. State , 457 S.W.3d 446 (Tex. Crim . App. 2015). Under it, we decide “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found2

the essentia l elements of the crime beyond a reasonable doubt.’” Id. at 448, quoting, Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (emphasis in original). The standard burdens “the factfinder with resolving conflicts in the testimony , weighing the evidence, and drawing reasonable inferences from basic facts.” Id. And, the reviewing court must decide if “‘the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light mo st favorable to the verdict.’” Id. Appellant does not dispute that he and an accomplice robbed the convenience store. Nor does he deny that he carried an object that the store clerk characterized as a

“ pistol. ” Instead, he simply alleges that the clerk’s testimony about seeing only a barrel protruding from his jacket sleeve was insufficient to establish that t he object was an actual firearm. Appellant correctly suggests that the clerk testified to seeing only a four or five inch black barrel protruding from the jacket sleeve. So too did he testify that 1) two men entered the store brandishing “guns , ” 2) they were “pistols , ” 3) the weapons each robber carried looked similar , 4) the item pointed at him did not look like the toy guns with which his child p layed, and 5) he was sure they were “real.” To that we add the following bit of evidence. The clerk was asked: “At one point when they were yelling at you about a safe, did the man in the dark colored jacket [ i.e. appellant] point that gun at you and say anything to you? ” His answer was : “ H e pointed the gun at me, said, ‘ This is real . If you don't open this safe, I'm going to shoot you in the leg. ’ " (Emphasis added). So, contrary to appellant’s contention, the record contains more than merely the cler k’s description of what appellant and his accomplice allegedly held. I t contains3

appellant’s own representation or admission that w hat he wanted the clerk to believe was a firearm was “real” and was going to be used to “shoot [the clerk] in the leg.” Fro m that amalgam of evidence, the jury could have rationally inferred, beyond reasonable doubt, that what appellant used and exhibited “ a deadly weapon , to - wit: a firearm” during the robbery as alleged in the indictment. So too could it have disregarded app ellant’s later contradictory statement to the arresting officer that the firearm was merely a toy , a truism that appellant acknowledged in his brief. Accordingly, the judgment of the trial court is affirmed. Brian Quinn Chief Justice Do not publish .